Bo Xilai’s Gift to Chongqing: A Legal Mess

Bo Xilai, the former Communist Party chief of Chongqing stripped of all his party posts Tuesday night as part of an investigation into “serious discipline violations,” has done more than saddle Beijing with a major political scandal. He has also left behind serious legal problems that will take considerable effort to resolve.

Reuters

A construction labourer works on scaffolding near People’s Liberation Monument in Chongqing.

The problems largely stem from Bo’s “smash the black” campaign, a furious effort to crackdown on corruption and organized crime carried about by former Chongqing police chief Wang Lijun that, by all accounts, involved misuse of both the courts and the police. Quite apart from Bo’s own offenses, the central authorities of the Party-state are now faced with how to address the treatment of individuals who were punished during the last three years, perhaps unjustly, for their alleged criminal acts.

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The most serious arbitrary use of power resulted in the conviction of thousands of people for alleged participation in organized crime. The campaign led to the arrest of more than 5,700 people and the seizure of more than $11 billion in illicit funds since 2009, according to The Wall Street Journal. Legal scholar Tong Zhiwei, speaking to the Financial Times, argues that under “smash the black” officials under the Chongqing party committee interfered with legal procedures and “clearly exceeded constitutional and legal powers.”

To carry out the campaign, the Financial Times says, “heavy use” was made of “measures that allow police to lock people away without trial,” presumably a reference to the use by the Chongqing public security bureau (PSB) of sentences to “re-education through labor” (RETL).

RETL was initiated in the 1950s as an alternative to formal arrest, accusation and trial by the courts. Functionally, it allows individuals to be deprived of their liberties through decisions made entirely within the police hierarchy. People subject to RETL are sent to labor in special camps or factories without a trial or access to legal counsel, and they are often denied their right to appeal the decisions to a court. The PSB may send them for as long as three years with the possibility of another year being added to the sentence.

This administrative sanction originally focused on minor crimes, but has been used to punish dissidents and other offenders who challenge the values and policies of the party-state. In one illustrative case in Chongqing at the height of Bo Xilai’s rule, a blogger was sentenced to one year in a labor camp for posting on a microblog a scatological joke that accused Bo of exercising undue influence over Chongqing’s courts.

An unnamed legal activist quoted in the Financial Times report mentioned above appears to suggest that the damage done by RETL in Chongqing is not permanent. “It is an administrative measure and can easily be reversed through administrative means,” the legal expert is quoted as saying, “so we’re likely to see a lot of cases re-examined.”

Probably more pressing for central authorities in Beijing is the question of how Bo Xilai and the former chief of Chongqing’s police, Wang Lijun, will be treated. This question has become more prominent with Bo’s arrest and suspension from the Politburo. As for Wang, some have already speculated that he might be prosecuted for treason. In the past, when high-ranking CCP officials have been punished, they have first received heavy Party discipline and expulsion from the Party, and were then prosecuted and given heavy jail sentences.

But there is a larger issue than Bo’s personal fate or the heavy-handed use of administrative sanctions, and that is what authorities will do to address Bo and Wang’s misuse of the courts A longtime observer of Chinese politics, Willy Lam, writes: “Perhaps the best indicator of whether the Hu-Wen leadership is ready to embrace some form of political reform and ‘universal values’ is whether the authorities will handle the investigation according to the rule of law.” He argues that the Chinese public and the international community have to be convinced that police work and judicial proceedings related to Bo’s rule will be conducted in strict accordance to the law.

More specifically, he argues that “alleged victims of Bo’s ‘anti-triad’ movement in 2009 and 2010, who have claimed that they were locked up and imprisoned according to the kind of ‘rough justice’ associated with the country’s yanda (‘strike had’) tradition, should be given opportunities to seek legal redress.”

In the wake of Bo Xilai’s downfall, some lawyers have expressed doubt about the extent to which cases could be reopened. Some wealthy entrepreneurs were sentenced to death or life imprisonment and their assets transferred to the state. One lawyer said that convictions for bribery or organized crime would be difficult to reopen, and expressed concern that “we could well end up just like after earlier political campaigns…cover it all with a blanket of silence and move on.” At this point, it’s still too soon to tell.

Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).

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